Supra v Police

[2020] NZHC 2959

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF CONNECTED

PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000270

[2020] NZHC 2959

BETWEEN

NATALIA SUPRA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 November 2020
Appearances:	D Schellenberg and C J J Mair for Appellant K O M Fitzgibbon for Respondent
Judgment:	10 November 2020

JUDGMENT OF VENNING J

Appeal against sentence and convictions

This judgment was delivered by me on 10 November 2020 at 2.15 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland
Counsel:            D Schellenberg/C J J Mair, Auckland

SUPRA v NEW ZEALAND POLICE [2020] NZHC 2959 [10 November 2020]

[1]    Following a defended hearing in the District Court at Auckland Judge A J Fitzgerald convicted Natalia Supra under the Summary Offences Act 1981 on one charge of common assault and one charge of wilful damage.1 Ms Supra was convicted and ordered to come up for sentence if called upon within 12 months on the assault charge and convicted and ordered to pay reparation of $382.60 on the intentional damage charge. The reparation has been paid.

[2]    In 2019 Ms Supra applied to the District Court for a rehearing under s 177 of the Criminal Procedure Act 2011 (CPA). Ms Supra wished to pursue a discharge without conviction. In a judgment delivered on 4 June 2020 Judge Fitzgerald dismissed her application for a rehearing and set out the reasons why he considered a discharge without conviction should not be granted.2

Jurisdiction

[3]    A preliminary issue arises. That is whether an appeal lies from the Judge’s dismissal of Ms Supra’s application for a rehearing under s 177 of the CPA.

[4]    The starting point is that appellate powers are purely statutory. There is no scope to use the Court’s inherent jurisdiction to create a pathway for an appeal that is not provided for by statute.3 Part 6 of the CPA does not provide a direct appellate pathway from a decision under s 177 of the Act.

[5]    Mr Schellenberg suggested that resort might be had to an appeal under s 296 CPA on a question of law. Section 296 does provide for an appeal on a question following the determination of the charge. However, without deciding the point, it may be stretching the statutory language to apply it to permit an appeal on a question of law from a decision under s 177 of the CPA. The Court of Appeal have confirmed that an expansive view of s 296 should not be taken.4 As an alternative, in an appropriate case judicial review might lie from a decision of the District Court Judge under s 177.

1      New Zealand Police v Supra DC Auckland CRI-2013-004-013749, 10 September 2014.

2      New Zealand Police v Supra [2020] NZDC 10294.

3      Guy v Preliminary Proceedings Committee of the Medical Council of New Zealand [1995] NZAR 67 HC), (1994) 8 PRNZ 109.

4      Anderson v R [2015] NZCA 518 at [54].

[6]    However, it is strictly unnecessary to determine the jurisdictional issue in this case as both counsel accepted that the real focus of the appeal is on whether Ms Supra should have been granted a discharge without conviction and the Court’s focus should be on that.

[7]    The appeal against the initial conviction and sentence is out of time. The touchstone for granting an application to extend time is the interests of justice in the particular case.5 Applications for extension of time are often reduced to the reasons for the delay and the merits of the proposed appeal.6

[8]    In the present case it appears that Ms Supra did not receive advice regarding the ability to pursue the discharge for conviction until she lodged the application for rehearing. Further, as noted, the Police have accepted that the Court may treat this appeal as an appeal against the 2014 decision insofar as Ms Supra seeks a discharge without conviction and have also confirmed they do not oppose an extension of time.7

[9]An extension of time to appeal out of time is granted.

Background

[10]   I take the background facts as found by Judge Fitzgerald in finding the charges proved. Ms Supra and the victim of the offences had a brief relationship. As a consequence of the relationship, they had a son together, who at the time of the offending was four years old. There were ongoing issues in the Family Court between them, particularly in relation to the arrangements for E’s contact with his father.

[11]   The offending occurred on 16 November 2013. At the time E was with his father for the weekend. The victim had sent a text to Ms Supra advising her that he was taking E away for the weekend and would not return until Monday. She considered that to be in breach of the contact arrangement. In the event the victim did not take E away for the weekend. At about 5.30 pm the victim, his daughter S, and E, were watching television at the victim’s address. Ms Supra was driving past the

5      R v Knight [1998] 1 NZLR 583.

6      Mikus v R [2011] NZCA 298 at [26].

7      Respondent’s submissions at 2.5.

address. She wanted to check if the property was on the market because she had been advised it may be relevant in relation to an outstanding child support review.

[12]   Ms Supra said she noticed the victim’s car and so knew that he had not gone away. She stopped at the gate and beeped the car horn but no-one came. She then entered the property. She said the gate was slightly open so she could walk through it, but the Judge found that she must have forcibly opened the electronic gates and in doing so had damaged them.

[13]   When no-one answered Ms Supra opened the door and went into the house. The evidence as to what occurred then was confused. In large part the Judge relied upon the evidence of S.  S is the victim’s teenage daughter who at the time was about

16.8   S described seeing Ms Supra land a punch on the victim’s head.  Ms Supra was

then removed from the house by the victim. He physically lifted her up in a bear hug and put her outside. During the course of that Ms Supra dug her nails into his arms, which explained the marks on the victim’s arms as shown in photographs produced to the Court. The Judge accepted that there was a scuffle and that at some point Ms Supra suffered an injury to her head, but he was not able to say how it could have happened. There is photographic evidence of an injury to Ms Supra’s head. The Judge found the charge of assault proved against her.

The District Court decision

[14]   The Judge’s reasoning on the refusal to discharge without conviction is to be found in his refusal to grant a rehearing as the Court does not have a copy of his original sentencing notes. The Judge emphasised his view that the most concerning feature of the offending was that it occurred in the presence of E and S. He categorised the gravity at the high end of the middle range for such an assault. He then noted that Ms Supra had denied the charges. He considered her expression of remorse too late. The Judge did not consider the consequences of conviction to be out of all proportion to the gravity of the offending.

8      Counsel advised the Court of that on the basis of his instructions.

Appeal points

[15]In support of the appeal Ms Supra submits:

(a)the Judge erroneously characterised the overall gravity of the offending too highly;

(b)the Judge erred in law by placing insufficient weight on the mitigating circumstances and the consequences of a conviction.

Jurisdiction

[16]   An appeal against a refusal to discharge a defendant without conviction is properly characterised as an appeal against both conviction and sentence.9

[17]   The Court has a discretion to discharge without conviction a person who has either been found guilty of or has pleaded guilty to an offence.10 In order to discharge an offender without conviction the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. The word “satisfied” in this context does not mean the Court must be satisfied that the given consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that any given consequence will happen.

[18]There are three stages to the Court’s assessment:

(a)the assessment of the gravity of the offending with reference to the background facts;

(b)the direct and indirect consequences of conviction for the offender; and

(c)the assessment of whether those consequences would be out of all proportion to the gravity of the offending.

9      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

10     Sentencing Act 2002, s 106(1).

Gravity of the offending

[19]   With respect to the Judge’s assessment the description of the facts as found by him do not support a conclusion that the gravity of the offence was at the high to serious end of the middle range for a Summary Offences’ assault. What he found proven was a punch to the head and scratches on the victim’s arm. The last injuries were consistent with being caused by Ms Supra’s nails when she was being lifted and removed from the property. It is apparent from the photographic evidence that Ms Supra was also injured in the course of the incident.

[20]   The Judge seems to have been unduly influenced by the fact the offending was witnessed by E. He also seems to have placed reliance on the related dispute between the parties in the Family Court. That becomes apparent in the Judge’s further comments in which he noted that:11

… It is apparent that there have been ongoing proceedings in the Family Court between them regarding [E]’s care and, in particular, the arrangements for contact with his father. The evidence today indicates a high level of animosity in relation to issues such as numerous allegations and counter allegations and problems regarding the implementation of arrangements regarding [E]’s contact with his father.

[21]   There is no suggestion of nor any other evidence referred to by the Judge of any other physical confrontation or anything of that kind in the past. This was, as counsel had suggested, a one-off incident.

[22]   To the extent it is relevant that E observed the incident, there is no suggestion E was subjected to such behaviour on any ongoing basis. Until very recently Ms Supra remained the primary caregiver for E. In my judgment the Judge over-emphasised the gravity of the appellant’s offending in this case.

[23]   The Judge also appears to have been influenced by the fact that Ms Supra had pleaded not guilty. He appears to have factored that into his assessment of the gravity of the offending:12

11     New Zealand Police v Supra, above n 2, at [15].

12 At [14].

There is no credit available for accepting any responsibility for her part in this; Ms Supra pleaded not guilty and defended the charges. Her evidence, which was a denial of any responsibility in her evidence, indicates that at the time there was no remorse nor any insight into the inappropriateness of her actions.

[24]   However, the wording of s 106 and a decision of the Court of Appeal make it clear that a not guilty plea will not preclude the exercise of the discretion to discharge the offender. Rather than impacting on the assessment of the gravity of the offending the not guilty plea or failure to express remorse is more appropriately considered as a factor that may be weighed at the discretion stage.13

[25]I return to the issue of remorse at the discretionary stage.

Consequences

[26]   The Judge considered the consequences raised on behalf of the applicant, namely the black mark against Ms Supra’s name, the problems of finding a job as an accountant, the loss of credit in the Family Court and the implications of travelling to some countries were not out of all proportion to the gravity of the offending.

[27]   I consider the Judge was correct to reject the submissions regarding the “black mark” against Ms Supra’s name and the difficulty but not impossibility of international travel. As for the difficulties in the Family Court the situation seems to be clear that Ms Supra remained the principal caregiver even after the incident. Mr Schellenberg did not pursue these grounds with any vigour.

[28]   That leaves the significance of Ms Supra’s inability to obtain employment as an accountant. Ms Supra has supported her application with an affidavit from Ms Gumennaya, a project systems accountant for Southern Cross Hospitals Ltd. Ms Gumennaya has known Ms Supra for about 12 years in both a professional and personal capacity. She confirms that she works with finance recruitment companies a lot as she is currently a contractor, so she has to liaise with them for each new assignment. Each time she and others apply for an accounting position in New Zealand they sign a form permitting the recruitment agency to do a criminal record

13     Scott v R [2019] NZCA 261 at [88].

check. Only if an applicant is able to provide a clean criminal record with positive references will the application be pursued.

[29]   Ms Supra herself confirmed that the recruitment agencies require upfront disclosure of criminal convictions and as soon as they find out she has convictions they do not respond to her emails or calls or just respond to her application with fob- off emails.

[30]   Ms Supra has both good qualifications and experience. She has three qualifications in accounting. Her evidence is:

18.I am an all-round Financial Accountant, well experienced in all areas of accounting, taxation, financial analysis and reporting.

19.I am a Xero, MYOB and Workflowmax expert and very well experienced that here in New Zealand.

..

21.I have been building my career as an Accountant for many years starting from when I was first working at 18 years old when I was still in Russia.

22.In New Zealand since I have sought and achieved relevant qualifications and experience in the field since 2008.

23.I was employed by Brown & Thomson Consulting Engineering Ltd, February 2008–May 2010. My position was in accounts administration with full range of accounting and administrative support to Company owners.

24.I was then employed as Accountant by Ports of Auckland June 2011– November 2012. In that role I contributed to that company’s profitable growth strategy.

25.I then worked for Tribeca Homes Group being from December 2012– November 2013 I was the sole-charge Senior Company Accountant manging the accounts of three companies within the group. The software used was MYOB.

26.Attached is a reference about my work I obtained in 2015 from the Elusion Group of Companies.

27.My last job which was commensurate to my professional credentials, experience and education was at Harcourts Cooper & Co Real Estate from November 2013 until June 2014.

28.My position there was as the Senior Financial Accountant in the head office.

29.My software by this stage had grown by then to master also Xero. I reported to the Chief Financial Officer (CFO) and Chief Executive Officer (CEO).

…

31.I lost this job as soon as the company’s resource manager found out  that I had been charged with assault and wilful damage. This was before the court case. I am unsure how they found out but my employment was terminated.

[31]   Despite her qualifications and experience Ms Supra has been unable to obtain employment as an accountant at the level of her experience. She has consistently applied for accounting positions but has been unsuccessful because of her criminal record.

[32]   Where a conviction will be interpreted by an employer or professional body as affecting a person’s character and lead to immediate rejection without further inquiry

i.e. shortlisting, that may justify or support a discharge without conviction if a conviction would not fairly reflect the person’s character and culpability.14

[33]   It is important that Ms Supra has no previous convictions and is otherwise apparently a well-qualified, suitably experienced person, who has been unreasonably excluded from her chosen work because of this particular and unrelated conviction.

[34]   Ms Fitzgibbon submitted that from the appellant’s affidavit it was apparent she was able to obtain employment of sorts following conviction. That is correct to a point but the employment has been temporary. The work between February 2016 and February 2017 was a part-time contract with a media advertising company and that was only because of her rare knowledge of the software. Ms Supra has also been a contractor bookkeeper from March 2018 until February 2019 but again she was working in a small-size business for a friend part-time and only 12 hours a week. Nor is it an answer that Ms Supra has obtained a certificate of character from the New Zealand Institute of Chartered Accountants. The practical reality is that Ms Supra has not been able to get a job interview recently.

[35]From February 2019 Ms Supra has been on the unemployment benefit.

14     Edwards v R [2015] NZCA 583.

[36]   Ms Fitzgibbon also made the point that after seven years, which will expire in September 2021, Ms Supra would be entitled to apply under the clean slate legislation to have the conviction wiped from her record. That may well be correct but that is almost a year away and there is no reason for her circumstances to remain as they are for that length of time.

Overall assessment

[37]   In the circumstances of this case the consequences of the conviction far outweigh the gravity of the one very short and one-off incident of assault on the victim (and damage to the gates) which the appellant now regrets. The position would be quite different if the conviction had been a fraud conviction relevant to her suitability to act as an accountant.

[38]   Even though the offending is towards the bottom of the scale for gravity of such offending the evidence is that it prevents her from being considered by recruiters or an employer. Given her qualifications and stage of life the effective ban on her employment is an extremely severe consequence and one which is out of all proportion to the gravity of the offending.

Result/orders

[39]The application for an extension of time to appeal out of time is granted.

[40]   The appeal is allowed. The convictions are quashed. Ms Supra is discharged without conviction on both charges, on condition that she pay reparation of $382.60. I record counsel has confirmed that reparation has already been paid.

Venning J